The real damage has been done by the Patent Office accepting just about any claim, and letting the courts work it out, when they should have been rejecting obvious prior art.
I’ve been down the patenting road and spent a lot of money.
I think for the little guy, the answer is a provisional patent only and try to sell it before it passes into public domain a year out.
There’s a lot of incentive for a buyer with deep pockets to buy it while it’s provisional.
Lemelson has turned the USPTO into a shakedown racket that puts Jesse And Rev. Al to shame.
Step 1: The Courts decided that Section 101 of the statute had more substantive effect than intended. Section 101, if read properly, says that a broad range of things are patentable (it is written as inclusive), SUBJECT TO THE PROVISIONS OF THE STATUTE said provisions following Section 101. The Courts then took it upon themselves to declare a wide range of things as being off limits as if Section 101 was non-inclusive rather than inclusive. But still, to this day, they failed to articulate a test for telling us when things are off limits. Why? Because they cannot.
Step 2: The PTO read the results of Step 1 and refused to consider patent applications of a certain type. Many of those patents were directed to software (”high tech”), a new creature (more on that later). As a result, the PTO accumulated zip, zero, nadda written prior art (the only thing they can rely on, really, to reject a claim).
Step 3: The Courts (State Street Bank) changed course. Suddenly everything was patentable. The problem was that without prior art, literally every ridiculous idea bombarding the PTO was patentable. There was no basis for rejection.
Step 4: “High Tech” patents and the age of the internet corresponded with the courts change of direction. Many of these patents are so damn vague as to read on anything and everything. I have a colleague defending his client’s computer monitor against a patent covering an LED flashlight. Software, high tech, whatever you want to call it perplexes the Courts and PTO. Is it copyright, patent, or abstract. Hint, hint Congress, perhaps it is time to give software its own type of patent (like plants have patents, there are design patents, why not one for software with specific rights?)
Step 5: Send in the trolls. As Microsoft and the rest of the big guns killed the little guys or little guys simply couldn’t make it, what happened to their patent portfolios? Some enterprising people figured out what to do with them and hence was born the troll or NPE. Poor Microsoft, in many cases its long forgotten conquests came back home to roost. Problem is that the NPE’s took advantage of what I outlined in No. 4 above and went to town.
Step 6: What a powerful lobby that High Tech is. They went to Congress professing the evils of the patent system. The abuses!!! They demanded “reform” and a “get out of jail free” card. Really, they demanded the end to the patent system. But for other industries tempering that lobby, High Tech would have gotten their way.
Step 7: Back to the Courts and their voodoo. They were much maligned by the High Tech lobby and decided to head off the Congress at the pass rather than being embarrassed. Hence, they not only reversed the broadening of Section 101 but went so far as to de facto amend it killing entire legitimate industries (Prometheus) having nadda to do with High Tech. Try developing a treatment or drug, for example, without the diagnostics behind it.
Step 8: The America Invents Act, or as we like to call it, the America No Longer Invents Act passed. So many gems in this Act, for example, if you pay a ton of money to the PTO to get your patent through prosecution, you can count on paying a ton more to defend it in front of a new part of said PTO just to likely see it invalidated (at an 80% clip) under the new post grant procedures of the AIA.
Conclusion: I look at it this way. In the hurry to get to the devil (the patent Trolls) they cut down the laws that made us an innovative juggernaut. But the devil wears many faces(foreign knock-offs, for example). Now that the devil is turning around on us and the laws are cut down, how is that “reform” feeling. I have had two foreign knock-off companies contact me to ask if I can help them “enter” the U.S. market by destroying patents.
Congress could have amended the statute to specifically target trolls. Instead, Congress did what it always does. They played crony capitalism and took a slege hammer out where a scapel was needed.
The big issue is granting of patents - not the ability to exercise the patent rights. So many patents are granted for things that ARE obvious to those skilled in the art, or have prior art. I’ve consulted on a dozen patent litigation actions in the last 4 years, and in each case quickly pointed to known prior art that invalidated the patent.
The problem is patents are granted when they do not deserve to be granted. Stop that - and the whole issue of “patent trolls” goes away.
Thanks for posting this treatise on the law of unintended consequences.